Sturtz v. Chesapeake Corp.

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Senior Judge Hodges
Argued at Richmond, Virginia

CARLA STURTZ, BENEFICIARY OF,
THOMAS E. STURTZ, JR. (DECEASED)
OPINION BY
v. Record No. 2937-01-2 JUDGE WILLIAM H. HODGES
AUGUST 20, 2002
CHESAPEAKE CORPORATION OF VIRGINIA AND
PACIFIC EMPLOYERS INSURANCE COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Stephen T. Harper (Kerns, Kastenbaum, &
Reinhardt, on brief), for appellant.

Douglas A. Seymour (Siciliano, Ellis, Dyer &
Boccarosse, on brief), for appellees.

Carla Sturtz (claimant), beneficiary of Thomas E. Sturtz,

Jr. (decedent), appeals a decision of the Workers' Compensation

Commission denying claimant's claim for survivor death benefits

for herself and her twenty-year-old son, a full-time student.

Claimant contends the commission erred in finding that her claim

for death benefits due to a fatal compensable consequence was

barred by the limitation period contained in Code § 65.2-512.

Finding no error, we affirm.

The facts are undisputed. On September 8, 1986, while

working for employer, the decedent sustained a compensable

injury by accident when a calendar dryer blew up and flying

debris hit his head. The decedent suffered a traumatic brain
injury as a result of the accident. The commission entered an

award, by agreement of the parties, for temporary total

disability (TTD) benefits beginning September 16, 1986.

Employer paid decedent TTD benefits for the maximum period

allowed under Code § 65.2-518, 500 weeks.

On January 3, 1997, by agreement of the parties, the

commission entered an award in favor of the decedent for

permanent total disability (PTD) benefits under Code

§ 65.2-503(C), beginning April 8, 1996, payable for life.

On February 5, 1999, the decedent was killed by a gunshot

wound to the chest after a confrontation with police arising out

of a domestic disturbance at his home.

On July 30, 1999, employer filed an application with the

commission seeking to terminate the PTD award. On October 22,

1999, claimant filed a claim for death benefits, alleging that

the decedent's death was a compensable consequence of his

original September 8, 1986 injury by accident.

On December 13, 1999, the deputy commissioner terminated

the PTD award due to the decedent's death and referred

claimant's October 22, 1999 claim to the hearing docket. The

parties did not appeal that decision.

On September 20, 2000, claimant amended her claim to allege

that either a new accident or a compensable consequence occurred

on February 5, 1999.

- 2 -
 The commission found that claimant's claim was barred by

the statutory limitation contained in Code § 65.2-512. 1

Code § 65.2-512, in its pertinent part, provides as follows:

A. If death results from the accident
within nine years, the employer shall pay,
or cause to be paid, compensation in weekly
payments equal to 66 2/3 percent of the
employee's average weekly wages . . . .

1. To those persons presumed to be
wholly dependent upon the deceased employee
. . . for a period of 500 weeks from the
date of injury . . . .

Code § 65.2-518 provides in pertinent part that "[t]he total

compensation payable under this title shall in no case be

greater than 500 weeks . . . ."

"The commission's conclusions of law are not binding on

this Court." Thomas Refuse Serv. v. Flood, 30 Va. App. 17, 20,

515 S.E.2d 315, 317 (1999). However,

[w]hen interpreting Code § [65.2-512], or
any other statute, we follow the settled
rule that the construction accorded a
statute by public officials charged with its
administration is entitled to be given
weight by the courts. Indeed, [this Court]
has said that the Commission's construction
of the Workers' Compensation Act should be
given "great" weight.

Bohle v. Henrico County Sch. Bd., 246 Va. 30, 35, 431 S.E.2d 36,

39 (1993) (citations omitted).

1
The parties did not challenge before the full commission
the deputy commissioner's March 1, 2001 decision finding that
the decedent's death was causally related to the original
accident in 1986. Thus, that finding is binding and conclusive
upon us.
- 3 -
 Claimant argues that under the holding in Leonard v.

Arnold, 218 Va. 210, 237 S.E.2d 97 (1977), the decedent's death

constituted a "new and separate accident" that resulted as a

compensable consequence of his 1986 brain injury. Therefore,

she contends that February 5, 1999 should be considered a new

date of injury, rendering claimant's October 22, 1999 claim an

original claim for benefits that was not barred by the nine-year

limitation period because the decedent's death occurred within

hours or minutes of this "new" accident on February 5, 1999.

Consequently, claimant argues that the decedent's dependents are

entitled to an additional 500-week maximum period of disability

benefits. In rejecting these arguments, the commission found as

follows:

[W]e note that a careful reading of Leonard
v. Arnold reveals no basis upon which to
conclude that the Court - - by bringing "new
and separate accidents" within the ambit of
the doctrine of compensable consequences - -
intended to bestow upon these subsequent
claims the same status as an original
accidental injury for which benefits are
awardable, independent of the first
compensable injury. The "new and separate
accident" language was used by the Court as
a contrast to the "change in condition"
language that was already recognized by the
Commission as compensable prior to that time
- - such as direct progressions,
deteriorations or aggravations of the
original injuries. The Court demonstrated
that new accidents, resulting in new and
different injuries, could also be proven
causally related to the original injuries
and should therefore be compensable.

- 4 -
 Standing alone, the decedent's death on
February 5, 1999 at the hands of police
officers at his home after a domestic
disturbance is in no way an "accident
arising out of and in the course of
employment." Therefore, this claim can only
be found compensable if it is proven to have
resulted as a direct causal consequence of
the original accident in 1986. Leonard v.
Arnold and its progeny instruct that all
claims causally related to the original
accident, but which amount to new and
separate accidents must be submitted to the
employer and the Commission within the
original statute of limitations or they will
be forever barred. Because these events
constitute an unbroken "chain of causation,"
the subsequent accident and injuries
resulting from it, are treated as part of
the original claim and do not result in the
establishment of a new, original, separate
and independent claim file.

Finally, we find nothing in the Act
that suggests that the General Assembly
intended to extend the right of dependents
to claim death benefits beyond the nine-year
period set out in Code § 65.2-512. The
statute clearly states that death benefits
are awardable only if death results within
nine years from "the accident." Because the
decedent's death occurred more than nine
years after his compensable accident on
September 8, 1986, no death benefits are
payable to the claimant or her son pursuant
to Code § 65.2-512.

(Footnote and citation omitted.)

We agree with the commission's interpretation of Leonard

and Code § 65.2-512. Nothing in Leonard supports claimant's

argument. Leonard stands for the proposition that "[w]hen a

primary injury under the Workmen's Compensation Act is shown to

have arisen out of the course of employment, every natural

- 5 -
consequence that flows from the injury is compensable if it is a

direct and natural result of a primary injury." Id. at 214, 237

S.E.2d at 99. The Leonard Court concluded that if the evidence

shows that the subsequent injury did not naturally flow from a

progression, deterioration, or aggravation of the initial

injury, then the subsequent injury is the result of a new and

separate accident, not a change in condition. Id. Under these

circumstances, the new and separate injury arising out of the

first injury requires the claimant to give notice to employer of

the accident and to file a claim with the commission with the

time limitations described in Code § 65.1-87 (now Code

§ 65.2-601). Leonard, 218 Va. at 214-15, 237 S.E.2d at 100.

Leonard did not expand the claimant's entitlement to benefits,

but only expanded the period of time for which a claim for an

injury due to an accident caused by a compensable consequence

could be made within the statutory maximum.

In addition, nothing in Code § 65.2-512 provides for a new

limitation period for accidental injuries, which are deemed to

constitute compensable consequences of an original injury by

accident. The basis upon which the February 5, 1999 incident

was found to constitute an accident was that it qualified as a

compensable consequence of the original injury. By itself, the

February 5, 1999 incident did not constitute an injury by

accident arising out of and in the course of the decedent's

employment. Thus, because the decedent's death did not occur
- 6 -
within nine years from the original September 8, 1986 injury by

accident, the commission correctly determined that claimant and

her son were not entitled to an award of death benefits.

Accordingly, we affirm the commission's decision.

Affirmed.

- 7 -
Benton, J., concurring.

This appeal concerns the interpretation of the death

benefits provision of the Workers' Compensation Act. In

pertinent part, Code § 65.2-512(A) provides that "[i]f death

results from the accident within nine years, the employer shall

pay, or cause to be paid, compensation." The issue is whether

the words "the accident" refer only to the event that gave rise

to the original compensable injury by accident or whether the

words also include a later event that causes an additional

injury which is compensable under the doctrine of compensable

consequence. I agree with the majority that the commission

correctly ruled that the statute refers to the original event.

The commission's opinion properly concludes that the

employee's reliance on Leonard v. Arnold, 218 Va. 210, 237

S.E.2d 97 (1977), is misplaced. I write separately, however,

solely to address the following sentence in the commission's

opinion:

Leonard v. Arnold and its progeny instruct
that all claims causally related to the
original accident, but which amount to new
and separate accidents must be submitted to
the employer and the Commission within the
original statute of limitation or they will
be forever barred.

If the words "original statute of limitation" relate to the

statute of limitations in effect for the filing of a new claim

for benefits, I agree with the tenor of the sentence. If, on

the other hand, the words were intended to refer to the statute
- 8 -
of limitations applicable to the original claim for benefits

that already has been filed, I disagree with the import of the

sentence.

In Leonard, an employee sustained a compensable injury by

accident to his heel on June 3, 1974. Eight days later, on June

11, while wearing crutches to assist him in walking and

"descending the stairs in a restaurant . . . [,] his crutches

caught in some metal stripping which caused him to fall." Id.

at 212, 237 S.E.2d at 98. The Court ruled that the back and

neck injuries the employee sustained on June 11 "were the result

of a new and separate accident" and were a compensable

consequence of the June 3 injury. Id. at 214, 237 S.E.2d at 99.

The Court then addressed when the statute of limitations began

to run on a claim for "injuries [that] . . . were compensable

under the doctrine of compensable consequences," where "the

injuries . . . were the result of a new and separate accident,

not from a 'change in condition' resulting from his first

accident." Id. at 214, 237 S.E.2d at 99-100. The Court held

that the time for filing the claim for the injuries resulting

from the "new and separate accident" began to run on "June 11,"

which was the date of the occurrence of the "new and separate

accident." Id. at 215, 237 S.E.2d at 100. See also Bartholow

Drywall Co. v. Hill, 12 Va. App. 790, 796-97, 407 S.E.2d 1, 4-5

(1991) (holding that where the new injury is a compensable

consequence of the initial injury, the statute of limitations
- 9 -
runs from the date of the new injury). This case is not

governed by Leonard.

The period of nine years contained in Code § 65.2-512(A) is

not in the ordinary sense a statute of limitations because it

does not establish a time limit for either filing a claim with

the commission or notifying the employer of the event.

"[C]ompensability and the time limitations within which a

compensable claim must be asserted are separate and distinct

issues." Id. at 793, 407 S.E.2d at 3. See also Vaughn, Inc. v.

Beck, 262 Va. 673, 679, 554 S.E.2d 88, 91 (2001) (distinguishing

between a statute of limitations and a statutory time period

that is a part of the cause of action). The period of nine

years denotes a fact to be proved as a condition precedent to

the entitlement to death benefits when death results from the

injury by accident. Leonard does not extend the period of

entitlement for death benefits upon proof of the occurrence of a

"new accident" that is a compensable consequence of the original

injury by accident. Furthermore, nothing in the express words

of the statute or in the spirit of the Act suggests that the

legislature intended to extend the period of entitlement to the

death benefits when there has been an occurrence of a

compensable consequence of the original injury by accident. In

this case, the injury by accident occurred in 1986 and the death

occurred in 1999, more than nine years after the event that gave

- 10 -
rise to the injury by accident. Thus, I concur in affirming the

commission's decision.

- 11 -